THE MOMENT OF STARTING A BUSINESS. - SERVICE

The actual start of the business

Pursuant to Art. 14 sec. 1 of the Act s.d.g. the entrepreneur may start a business on the day of submitting the application for entry in the Central Register and Information on Economic Activity (hereinafter: CEIDG) or after being entered in the register of entrepreneurs in the National Court Register.

The quoted and no other provision of the Act s.d.g. it does not define the concept of the "actual" moment of commencement of economic activity.

In line with the practice, the entry into the records is of a declarative nature. In other words, it does not establish a new legal situation, but merely states and sanctions the existing state of affairs. Therefore, this entry is only informative.

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Judgment of the Provincial Administrative Court in Poznań of November 3, 2010, file ref. no. IV SA / Po 646/2010:

"The entry in the register of economic activity itself is not constitutive, but declarative, and in terms of its entire content, i.e. from the point of view of tax or insurance law, the actual conduct of business activity in its various subjects is important (so the mere notification of a break in conducting business)."

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Judgment of the Supreme Court - Civil Chamber of March 5, 2010, file ref. no.IV CSK 371/2009:

“1. Notification and entry in the register of economic activity is only the basis for starting a business within the meaning of its legalization and is not an event or activity equated with taking up such activity. Determining by the entrepreneur himself the date of commencement of the activity entered in the register results only in the factual presumption that this activity was undertaken and that it is carried out if the relevant entry is still entered in the register.

2. A civil law partnership, which does not have the status of an entrepreneur, cannot use the company. However, it is traded under a name that does not enjoy the protection of corporate law. The Civil Code does not regulate the rules for selecting a civil partnership name. It should also be emphasized that the name of the civil law partnership is not registered anywhere. "

It should be added that pursuant to Art. 25 sec. 1 point 7 of the Act s.d.g. the entry in CEIDG are subject to, inter alia, "Date of commencement of economic activity".

Under Art. 33 of the Act s.d.g. it is presumed that the data in CEIDG are true. The information provided by the entrepreneur constitutes his declaration and he is liable in the event of the entry being inconsistent with the facts.

Conclusions

The discussed act s.d.g. it does not introduce the structure of "actual commencement of economic activity", and therefore does not introduce a definition of the moment of commencement of business activity. The indications should be found primarily when making a systemic interpretation based on the analysis of other detailed provisions.

An example may be Art. 7 sec. 1 of the Act of November 20, 1998 on flat-rate income tax on certain revenues earned by natural persons (Journal of Laws No. 144, item 930, as amended).

Moreover, it seems necessary to consult the rich jurisprudence of courts and views in the doctrine.